Skipworth sued Robinson before a justice of the peace, on the following cause of action: “Mr. Andrew D. Robinson to Joseph Skipworth, Dr. To one iron-gray horse, $130. Par. 2. To money had and received for the use of the plaintiff, and demands judgment for Joseph Skipworth, $130.” The justice rendered a judgment for the plaintiff for $100. The plaintiff appeaed to the court of Common Pleas. Trial by the court; finding and judgment for the plaintiff for $100, and costs of suit. Motion for a new trial by defendant overruled, to which defendant excepted, and filed his bill of exceptions.
The evidence is in the record. The testimony shows that the plaintiff resides in Illinois; that he is the owner of the horse in question; that some time in October, 1863, the horse was stolen; that in the same month the defendant bought the horse, at public auction in the city of Evansville, for $47; that the defendant, in April following, sold the horse to the United States quarter-master at that city, and realized from such sale $117; that the defendant had no knowledge of the ownership of the horse, and acted in good faith in the purchase and sale thereof. The value of the horse is variously estimated, and there is a conflict in the evidence as to whether there was a demand made by the plaintiff on the defendant for the horse or his value before suit brought; but if such demand
It is contended by the appellant, that having bought the property in good faith before any claim was made upon him, and before he received any notice of the theft or of Skipworth’s claim, he is not legally liable to him, nor to any one except to his own vendee, in case he shall be dispossessed of the property by some one having a better title. This position can not be sustained.
The case of Hoffman and Others v. Carow, 22 Wendell’s Rep. 284, in its equities, is a much stronger case for the defendant than the one at bar; there an auctioneer had, in good faith and without notice of 'the felony, sold the stolen goods, and paid over the proceeds to the thief. Tet it was held, both in the Supreme Court and the Court for the Correction of Errors, that the auctioneer was liable to the owner for. the value of the goods.
The only difficulty that the court had in that case was the authority of the cases of Parker v. Patrick, 5 Term, 175, and Gimson v. Woodfull, 2 Car. & Payne, 41, in which it was held that, before the owner of stolen property can have a civil action, he must prosecute the felon to conviction. But this doctrine never had any application in this country; it grew up in England, under their peculiar law that the lands, and goods of a felon were forfeited to the crown, and death also was the punishment. Now, to give an action where the body could not be taken in execution, and where all the lands and effects belonged to the king, would be entirely fruitless. No remedy whatever could be had, and the provision by statute for a recompense out of the estate, was the only relief which the injured party could have. Per Parker, Ch. J., in the case of Boardman v. Gore and Another, 15 Mass. 330. But in England this doctrine is now confined to the felon, and cases in which the felon is a necessary party.
In the late case of White v. Spettigue, 13 Meeson &
Merewether, in support of a motion for a new trial, cited the case of Gimson v. Woodfull. Pollock, C. B., said: “Tbe ease of Stone v. Marsh, 6 Barn. & Cress. 551, is a direct authority against tbe doctrine you are contending for. In that ease, Lord Tenderden says: ‘There is, indeed, another rule of tbe law of England; viz: that a man shall not be allowed to make a felony tbe foundation of a civil action; not that be shall'not maintain a civil action to recover from a third and innocent person, that wbicb bas been feloniously taken from him, for this be may do if there bas not been a sale in market overt, but that be shall not sue tbe felon; and it may be admitted that be shall not sue others, together with tbe felon, in a j>roceeding to wbicb tbe felon is a necessary party, and wherein bis claim appears, by bis own showing, to be founded on tbe felony of tbe defendant. Gibson v. Minet, 1 H. Black. 612. This is tbe whole extent of tbe rule. Tbe rule is founded on a principle of public policy, and where tbe
The appellant contends that having bought and sold the horse in good faith, and without any notice whatever of Skipworth’s claim, a demand should have been made upon him before beginning an action; and the case of Wood v. Cohen and Another, 6 Ind. 455, is cited in support of this position. In that case Cohen, the bonau fide purchaser of the horse, had not sold him, but had possession of the horse at the time the action was commenced.
Pobinson acquired no property in the horse by his purchase, and the sale of the horse by him was a conversion. According to Lord Coke, in the oldest leading case on this head, which still preserves its authority, (Isaac v. Clark, 1 Bulst. 312,) “there must be an act done to convert one thing into another,” and a converting into money by sale has always been held to be within this definition. The cases of Hoffman and Others v. Carow, and White v. Spettigue, supra, as well as the case of Peer v. Humphrey, 2 Ald. & Ell. 590, recognize this same doctrine. Where there has been an actual conversion, no demancj. is neces
As this suit was commenced before a justice of tbe peace, tbe form of tbe pleading is not material to tbe' rights of the parties. And there is no defect in the pleading that is not cured by statute. 2 G. & H. 278, sec. 580; Ib. 122, see. 101.
But the court committed an error in rendering judgment for costs against the appellant. 2 G. & H. 597, sec. 70. The judgment of the justice was not increased $5 or upward, and the appeal was taken by the plaintiff. On the authority of the case of Seams v. The State, at this term, the case of Kuhns v. Krammis, 20 Ind. 490, is overruled.
Is the matter embraced in section 70, supra, properly connected with the subject of the act ?
The subject of the act is “The election and qualification of justices of the peace, and defining their jurisdiction, powers, and duties in civil cases.” Appeals from their judgments in civil cases are provided for, and the mode of proceeding in such cases in the Circuit and Common Pleas Courts is prescribed. Section 67 is as follows: “ Such cause shall stand for trial in the Court of Common Pleas or Circuit Court, whenever such transcript has been filed ten days before the first day of the term thereof, and be there tried under the same rules and regulations prescribed for trials before justices; and amendments of the pleadings may be made on such terms, as to costs and continuances, as the court may order.” This latter section is as foreign to the subject of the act as section 70, supra, and yet the learned judge who delivered the opinion of the court in Kuhns v. Krammis, supra, says: “ Appeals from justices of the peace, by our law, entirely remove the causes appealed from the justices. They are not tried upon error, but de novo, and are never returned to the justices. The final judgment regulating the rights of the parties is rendered in the Appellate Court.” And indeed the decision is made to turn on this proposition; for, continues the learned
The numerous attempts to procure improper legislation under false titles; the oft-repeated efforts, sometimes too successful, to incorporate into popular measures some
The act in question was passed at the first session of the legislature under the present constitution; many of its members had constituted a part of the convention which framed it, and all had, as citizens of the state, participated in its adoption. The section of the act of June 9, 1852, under consideration, had been acted on, and recognized as valid, for more than ten years, by all the courts of this state, including this court; under such circumstances, the court of last resort ought not to declare the section referred to unconstitutional, unless the question is free from every doubt; but it is proper for us to say that we entertain no doubt on the subject, and with deference, we express our surprise at the ruling in the case of Kuhns v. Krammis, supra.
The judgment of Common Pleas Court is reversed as to the costs, and affirmed as to the residue; and cause remanded to said court, with directions to render judgment for appellant for his costs in said court. Costs against the appellee here.